Paragraph (1)
Grant of Licences by a Competent Authority
(I) Any country which has declared that it will avail itself of the faculty provided for in this Article shall be entitled to substitute for the exclusive right of reproduction provided for in Article 9 a system of non-exclusive and non-transferable licenses, granted by the com¬
petent authority under the following conditions and subject to Arti¬
cle IV.
A.III. 1. As with the right of translation (Article II of the Appendix) this provision lays down the principle, leaving the details to subsequent para¬
graphs and question of procedure to Article IV. However, unlike Arti¬
cle II, there is here a separate paragraph defining the works in respect of which a compulsory licence may be sought (see paragraph (7)). Here, too, it is the national law which lays down who shall be the authority compe¬
tent to grant licences.
Article III, paragraphs (2) to (5) of the Appendix Conditions under which Licences may be Granted
(2)1 a) If, in relation to a work to which this Article applies by virtue of paragraph (7), after the expiration of
(i) the relevant period specified in paragraph (3), commencing on the date of first publication of a particular edition of the work, or
(ii) any longer period determined by national legislation of the country referred to in paragraph (1), commencing on the same date,
copies of such edition have not been distributed in that country to the general public or in connection with systematic instructional activi¬
ties, by the owner of the right of reproduction or with his authoriza¬
tion, at a price reasonably related to that normally charged in the country for comparable works, any national of such country may obtain a license to reproduce and publish such edition at that or a lower price for use in connection with systematic instructional activi¬
ties.
lb ) A license to reproduce and publish an edition which has been distributed as described in subparagraph fa) may also be granted under the conditions provided for in this Article if, after the expira¬
tion of the applicable period, no authorized copies of that edition have been on sale for a period of six months in the country concerned to the general public or in connection with systematic instructional
162 WIPO — Guide to the Berne Convention
activities at a price reasonably related to that normally charged in the country for comparable works.
(3) The period referred to in paragraph (2)la)(i) shall be five years, except that
(i) for works of the natural and physical sciences, including mathematics, and of technology, the period shall be three years;
(ii) for works of fiction, poetry, drama and music, and for art books, the period shall be seven years.
(4)1 a) No license obtainable after three years shall be granted under this Article until a period of six months has elapsed
(i) from the date on which the applicant complies with the require¬
ments mentioned in Article IV(I), or
(ii) where the identity or the address of the owner of the right of reproduction is unknown, from the date on which the applicant sends, as provided for in Article IV(2), copies of his application submitted to the authority competent to grant the license.
lb) Where licenses are obtainable after other periods and Arti¬
cle IV(2) is applicable, no license shall be granted until a period of three months has elapsed from the date of the dispatch of the copies of the application.
ic) If, during the period of six or three months referred to in subparagraphs la! and h . a distribution as described in para¬
graph (2)'ai has taken place, no license shall be granted under this Article.
Id) No license shall be granted if the author has withdrawn from circulation all copies of the edition for the reproduction and publica¬
tion of which the license has been applied for.
(5) A license to reproduce and publish a translation of a work shall not be granted under this Article in the following cases:
(i) where the translation was not published by the owner of the right of translation or with his authorization, or
(ii) where the translation is not in a language in general use in the country in which the license is applied for.
A.III.2. Most of these conditions are self-explanatory but a few com¬
ments may be helpful.
A.III.3. First, the licensee must be a national of the developing country in question. The comments on translation licences (Article II) apply equally here.
A.I1I.4. Secondly, as with translations, the copyright owner enjoys a period of exclusivity during which no licences may be granted. Here however there is no distinction on grounds of language, since this is a matter of simply reproducing the work in its original text. The distinction is made according to the nature of the work (paragraph (3)). The normal
period is five years from first publication (unless the developing country in question prescribes a longer term (paragraph (2)(a)(ii)). But there are two exceptions: for works of the natural and physical sciences, including mathematics and of technology, the term is shorter—namely three years.
The pace of change in these matters justifies the reduction. On the other hand, the period is increased to seven years for works of fiction, poetry, drama and music. The French text speaks of "les œuvres qui appartien¬
nent au domaine de l'imagination, telles que les romans, les œuvres poéti¬
ques, dramatiques et musicales". It was however agreed at the Paris Revision (1971) that the difference was merely one of form and its sub¬
stance meant the same thing. This seven-year period also applies to art- books. These categories are usually of less importance for teaching pur¬
poses and hence the period can be longer. The normal delay (of five years) applies to such things as works of philosophy or sociology, law- books, collections of lectures, theses, etc. The term applicable to films (see paragraph (7) below) depends on which of the three groups they fall into.
A.III.5. In the third place, no licence may be granted if during the relevant period the copyright owner has himself published in that country an edition at a price reasonably related to prices normally charged in that country for comparable works; copies made under any compulsory licence which is granted must be sold at such or a lower price. The purpose of any compul¬
sory licence must be used in accordance with systematic instructional ac¬
tivities (paragraph (2)(a)). The French version speaks of "l'enseignement scolaire et universitaire". These same French words are used to describe the purpose for which translation licences may be granted under Arti¬
cle II, but there the English words used are "teaching and scholarship".
As has been said above (Article 11(5)), it was agreed in Paris (1971) that this must be understood in a wide sense as including not only activities connected with the formal and informal curriculum of an educational institution, but also systematic out of school education. It was also un¬
derstood in Paris that the competent authority in the developing country to whom a request for a licence has been made would be under a duty to determine that the licence would fulfil the need of specified systematic instructional activities. A licence would necessarily be refused if such activities were in fact incidental to the actual purpose of the reproduction.
The case is also covered where, after uie expiry of the applicable period (three, five or seven years), authorised copies are no longer on sale. Once these have been off the market for six months, a compulsory licence may be granted (paragraph (2) (b)). Note that paragraph (2)(a) deals with a case where no authorised copies have ever been available at a reasonable price;
164 WIPO — Guide to the Berne Convention under paragraph (2)(b) copies have been on sale but are no longer avail¬
able.
A.III.6. Finally, as with translations, the Article prescribes a period in which to establish contractual relationships. Where the period of exclu¬
sivity is three years, this negotiating period is six months and its starting date varies according to whether the identity of the copyright owner is known (paragraph (4)(a)(i), (ii)). When the exclusivity period is five or seven years, the negotiating period is three months. In this last case, knowledge of the identity or address of the copyright owner is immaterial. The three- month period runs from the date on which copies of the licence applica¬
tion were sent to the publisher and the information centres (para¬
graph (4)(b)), but. unlike translation licences, these periods can start to run before the end of the basic term; here, they are (or may be) concurrent rather than consecutive (the words "further period" which appear in Arti¬